Safe Hiring Solutions has launched ArrestAlert which is a real-time monitoring service that can provide real notifications if one of your employees, volunteers or vendors is arrested.
Nearly all new-hires for organizations will go through a background check prior to being offered the position. This ensures that a potential employer is aware of the criminal history of the candidate; however, a background check is only up-to-date at the time it is conducted. Without periodic background checks being run, any new criminal activity could go unknown.
Employees who have been a part of a company for any extended amount of time most likely do not have updated background checks on file. In terms of the HR team, the question becomes, “How often should we re-check our employees?”
As many states are becoming more proactive in security and safety, laws are now being created that mandate a maximum amount of time that can go by before an employer must receive an updated background check. One example is Indiana’s HEA 1079 bill, which now requires every employee on a school’s payroll to receive a new background check at least every 5 years.
Unless there is a state law similar to HEA 1079, there are no stipulations for how often organizations should do re-checks. It is then left to the HR team’s discretion.
This article is meant less to encourage constantly updating background checks, and more to create awareness that background checks very quickly become ‘out-of-date’. HR members may want to consider doing background re-checks on employees that have been employed for many years if they have not had a recent background check performed.
Learn more about ArrestAlert from SafeHiring which is real-time monitoring of more than 80% of the jails in the U.S.
I wrote an article a little over a week ago on how far back should background checks go and have been surprised at the number of LinkedIn comments asserting that the past is irrelevant. The comments have gone back and forth like a tennis match. The reality is that the past does matter.
I can’t escape the past. Every day I am questioned by potential clients. How long have you been in business? How long were you a police officer? How long have you partnered with organization X.
Or I am asked to provide a curriculum vitae that details my 15+ years of speaking at conferences throughout the U.S. and Europe on violence prevention. And if it is a keynote presentation, I will be asked for references.
I am cool with that. I realize that my life is a work in progress, building blocks that over time form who I am. It started with my parents work in law enforcement and victim services. Then my practical experience as a violent crime detective which opened the door to more than 15 years of violence prevention work and the launching of Safe Hiring Solutions in 2004.
The past does matter. Good or bad.
Oddly, these comments about the past not mattering were coming from LinkedIn which is one of the fastest growing social media platforms for business networking. And LinkedIn is built on the past. Look at the profile pages of members. It is all about experience and education.
So I think the more than 100 million LinkedIn members would have to agree that the past is important for business networking or they would not be members.
However, I noticed several comments that employee background checks are a privacy violation. I was going to comment but I thought this was such an important point that I would write an article.
Yes, a background check is certainly a privacy issue. Listen close. Privacy issue not privacy violation. Two distinctly different things.
A background check is by its nature a privacy issue. You are digging into a person’s background to determine if there is anything unsuitable.
I understand that a criminal records check is information that is publicly available but it is still a privacy issue to conduct the background check. The courts have even recently ruled that there is an expectation of privacy on the internet when it relates to social media background checks. A post on Facebook is for my friends not the whole world to see.
So yes background screening is a privacy issue.
The Fair Credit Reporting Act, the federal law that governs employment background checks, has very specific requirements to ensure there are no privacy violations. If an employer is using a background screening company to conduct their background checks then they must:
- Provide a disclosure statement to the applicant about the background check that may be conducted;
- Obtain an authorization from the applicant; AND
- The disclosure and authorization must be separate from the application so that the applicant completely understands what they are waiving (their privacy).
A legally conducted background check is NOT a privacy violation. How could it be if you authorize it?
You have a right to say no. But the employer does also.
So you cannot avoid an employee background check by claiming it is a privacy violation. The past does have validity.
This does not mean that having a criminal record should immediately be a disqualifier. That would be foolish.
But to say the past has no meaning is….well…stupid. There I said it.
One commenter stated that several “studies” have shown that a person who has committed a crime in the past is no more likely to commit a future crime than someone without a criminal record. Study? Cite?
I have seen scores of studies on recidivism that indicate more than half of ex-offenders are re-arrested within 3 years. FBI behaviorists have been studying violent offenders for decades and found that the best indicator for future violence is a past history of violence.
Dr. Jacquelyn Campbell, Johns Hopkins University, developed the Danger Assessment which is an instrument to help women assess their risk of interpersonal homicide. The tool relies on past history to help women assess their risk.
So yes, the past is important. To ignore the past would be negligent as in negligent hiring and negligent retention.
So to answer the big question, employee background checks are a privacy issue but they are not a privacy violation.
Do you remember a time when most employee background check lawsuits were because an organization did not conduct a background check? And the employee did something harmful. Today more than 90% of companies claim they conduct background checks on new employees. That sounds great but we know there is no standard of care for what constitutes a background check but that is food for another article.
The proliferation in background screening is creating a large volume of case law. The courts are making it clear that it is not enough to be conducting criminal background checks but that employers must be conducting legally compliant background checks.
The EEOC has made it a priority to go after employers who are using arrest records to deny employment or who have zero tolerance policies for criminal records. Pepsi Company learned this the hard way.
States are restricting the reporting of criminal records of credit information. So it only makes sense there will be increased scrutiny on compliance with the Fair Credit Reporting Act.
Let’s take a look at the recent Domino’s Pizza class action lawsuit. The lawsuit alleges that Domino’s did not obtain proper authorization before conducting background checks and did not share any adverse information with employees before firing them. The lawsuit also claimed that the consent for the authorization form was not separate from the application.
There are 3 lessons we can learn from the Domino’s employee background check lawsuit:
- Disclosure & Authorization. The federal Fair Credit Reporting Act requires employers to provide a disclosure statement about background checks to candidates and obtain a written or electronic authorization before conducting the background check.
- Pre-Adverse & Adverse Action. The FCRA requires employers to follow a 2 step process when denying employment “based in whole or part” or a background check report. First, they must issue a Pre-Adverse Action Letter which includes a copy of the background screening report and FCRA Summary of Consumer Rights. The applicant has a right to see what might be used against them and dispute any information that is in error. Second, the employer issues an Adverse Action Letter a minimum of 5 business days after the Pre-Adverse Action Letter if there is not a dispute.
- Consent Separate from Application. The FCRA requires that the Disclosure/Authorization be a separate from the application. The FTC does not want an applicant to sign away their rights without realizing what they are signing. So if your authorization form is part of your application, remove it. Make it a stand-alone document.
The allegations in the Domino lawsuit are nothing new. These are simple FCRA requirements that must be followed.
If your background screening partner has not assisted you with FCRA compliance, then they have left you vulnerable to a similar lawsuit. Contact us today for more information on FCRA compliance.
The U.S. Equal Employment Opportunity Commission (EEOC) recently announced their 2012-2016 strategic plan to focus more on “systematic litigation”. The plan passed by a 4-1 vote with the lone dissenter voicing concerns with the heavy focus on litigation instead of education and outreach. The strategic plan is about as clear as mud. However, the EEOC focus appears to be on cases that have a “broad impact of an industry, occupation, business or geographic area.”
Naturally, as I read through the plan, I was wondering how this will impact employment background checks?
I think it is just a continuation of a course the EEOC has been traveling for quite some time. They made it clear this past July during their public meeting on the use of criminal records that they have great concerns with the proliferation of criminal background checks and how that impacts ex-offenders.
Unfortunately, the July meeting was a little lopsided as the only voices heard were those of organizations that work with recently released prisoners. Clearly absent from the meeting was the voice of victims of crime and employers who have been impacted by violence in the workplace.
Do we really want to elevate ex-offenders to a protected class status?
Ok, before the barrage of anonymous comments (and I do find it hypocritical to reply anonymously if you are so passionate about your position) I want to say that I am 1 zillion percent in favor of quality programs that help prisoners achieve the status of ex-offenders. Really. I have served on prison ministries and our churches homeless ministry where I see the impact of a life of addictions, crime and unemployment.
However, nearly half of all prisoners released each year will be back in prison with 3 years. This has not changed over the past 15 years.
Obviously the criminal justice system does a poor job of rehabilitation. And many of the programs designed to help prisoners re-enter society have had little success.
Let’s be honest, if it was so simple as to pinpoint one thing as the cause, then we could convert all of our recently released prisoners to ex-offender status. Unfortunately for us and future victims, more than half of prisoners released each year are not ex-offenders, they are continued offenders.
Does gainful employment play a role in the helping an offender transition back into society? Absolutely! And I don’t think you would find many dissenters.
But I also know that the increase use of employment background checks is not the root cause of ex-offender recidivism. I am not drinking the Kool Aid.
I have had a front row seat and witnessed the death and destruction of violent offenders over the past 20 years. And for more than 20 years, the FBI behaviorists have found that the best indicator for future violence is a past history of violence.
So the argument that the widespread use of criminal record checks has had a disparate impact on ex-offenders is not grounded in research. There has been little movement in recidivism rates in the past 15 years. Yet the number of employers conducting criminal background checks during this same period has more than doubled. So if the employment argument were true, should we not have seen an explosion in recidivism?
Dr. Samenow and Dr. Yochelson have researched criminal offenders for more than 30 years and developed programs to challenge and change the thinking errors that are common with offenders. The following, according to Samenow and Yochelson, are common to all criminals:
- The criminal is very fearful;
- The criminal must cut off both internal and external deterrents in order to commit crime;
- The criminal is a predator who pursues power and control;
- The criminal demands to be identified as the “unique number one person” in all that he does, having never learned to fully function independent of others;
- The criminal feels “put down” and becomes angry when he does not get his own way, making him more relentless in pursuit of his goals using stealth or force to accomplish them; and,
- Except in the planning of a crime, the criminal fails to think long range
Samenow and Yochelson’s theory of thinking errors asserts that employment is used by the criminal to combat feelings of worthlessness by making him feel important.
So where does that leave us? We have to understand that criminal behavior is extremely complex and cannot be reversed by simple, quick-fix policies such as limiting criminal background checks.
As employers, we also have to understand where the EEOC is going. The recent $3.1 million Pepsi settlement is a great prologue.
We, as employers, also have a responsibility to use criminal background screening correctly. It is critically important for us to review our policies and make sure we do not have “zero tolerance” criminal record policies. We should follow this guide:
- What is the nature of the crime?
- How long ago was the crime committed?
- How does the crime impact the employment position?
This is such a “hot button” issue. Let me know your thoughts on balancing protecting your organization and protecting yourself from EEOC claims.
Have you heard about the new employment background checks movement “ban-the-box”? Well, “ban-the-box” simply means that employers can no longer ask about criminal records on the application. The legislation does not eliminate criminal background checks but requires the disclosure of criminal records during the interview instead of on the application. The theory behind the law is ex-offenders are being disenfranchised early in the hiring process because of their disclosure of a criminal record on the application. So if they were able to reveal this during the interview, they would be better able to explain the criminal record and changes they have made.
Several states have adopted such a law including Connecticut, New Mexico, Hawaii, Minnesota and Massachusetts. Several cities such as Atlanta, Chicago, Baltimore and Philadelphia have passed similar ordinances.
Advocates of this law believe it will save organizations money because they will only be conducting background checks after a conditional offer is made. The reality is very few organizations run a criminal background check after they receive an application. Most employers conduct employment background checks as the final step in the hiring process after a conditional offer has been made. So this law will not save most employers a penny.
However, “ban-the-box” legislation will potentially cost organizations a lot in the hiring process. An application is a critical tool in the hiring process that allows employers to gather information about candidates and to use it to conduct due diligence.
Dishonesty in the hiring process is always grounds for rejecting a candidate. So “ban-the-box” would remove an employer’s option of comparing a background screening report against an application and looking for dishonesty.
Do we really expect that “ban-the-box” will encourage candidates with a criminal record to reveal it during the interview process? Or will candidates with a criminal history be more likely to remain mum and hope the background check does not reveal the record?
Sure, employers can start asking about criminal convictions during the interview but how do they take adverse action based on a conversation? This is not a signed document such as an application. Will employers have legal standing to deny employment if a candidate says they don’t have a criminal record and a background check reveals otherwise?
Why don’t we educate and encourage employers to abandon zero tolerance background screening policies? This would do more to ensure an ex-offender has a legitimate opportunity at employment.
A company with a zero tolerance policy will still not hire a candidate with a criminal record whether they disclosed it on the application or it was found during the background check. The recent Pepsi case should help employers realize the potential problems with zero tolerance policies.
We all make mistakes. And we know that people with a criminal record can learn from their mistake, change and become a valuable part of our community.
This is why organizations must adopt a 3 step policy for the use of criminal records:
- What is the nature of the crime?
- When was the crime committed?
- How does the criminal record impact the position being sought?
This simple formula ensures that ALL candidates with a criminal record get a legitimate opportunity for employment.
However, we cannot ignore the research over the past 20 years. Recidivism rates of ex-offenders have held steady over the past 17 years. A BJS study found that 67.5% of prisoners released in 1994 were rearrested within 3 years. A 2011 Pew Center study found that recidivism rates have held steady since 1994.
Now, we know that the background screening industry exploded after September 11, 2001. In 1996, about 1 out of 2 companies conducted criminal background checks. By 2004 this had grown to nearly 80% of companies.
So recidivism rates have held steady while background screening has exploded. So should we believe that the proliferation in background screening has lead to the disenfranchisement of ex- offenders? If that were true, we should expect to have seen a huge increase in recidivism after 9-11-2001. But we didn’t.
So is the “ban-the-box” movement really about leveling the playing field for ex-offenders? Or is it about removing personal responsibility from our actions and decisions?
You tell me. Seriously, I want to know what you think.
Would you say that $ 1 million would be too much for a background check? I think the Roman Catholic Archdiocese of New York would agree, but that is what they paid for not doing a criminal background check. Pepsi Co. knows the feeling. They recently paid $3.5 to settle EEOC discrimination claims. The difference is Pepsi will never be accused of not doing enough.
Anita Collins was hired by the NY Archdiocese in 2003 for a finance position. They did not conduct an employee background check. Had they, it would have revealed a criminal record for grand larceny and a misdemeanor conviction for theft.
From 2003-2011, Collins carefully embezzled more than $1 million and used the money to pay her mortgage, buy expensive clothes and doll collections. She created false invoices and was careful to make sure each payment was less than $2,500 so it did not require a supervisor’s approval.
Interestingly, the reaction from her colleagues is much the same as it always is. Shock and surprise. She was described as an “unassuming” person. As somebody who prayed a lot. As somebody who was praised for her volunteer service at an event at St. Patrick’s Cathedral.
What can we learn from this case?
- Appearance is subjective and not a valid screening tool. Looks mean nothing. There is so much research on appearance and how that impacts interviews and hiring decisions. Anita Collins did not have thief tattooed on her forehead. The only way this is uncovered is through a comprehensive background screening program. Looks do not reveal character or integrity, anybody remember Ted Bundy?
- A small investment in a quality employee background check will save you in the long run. A $30 criminal background check would have saved the NY Archdiocese $1 million. Collins has a court appointed attorney and appears to have spent all the money which means no matter what the court outcome is, the Archdiocese will not be recovering their loss.
- An Employment Credit Report might be a good tool for financial positions. Would it have revealed anything with Collins? Maybe. An investigator with the D.A.’s office said she was definitely living above her “legal” means. So if this was a life pattern, we would expect her credit history to reflect poor credit choices, late pays and potentially defaults. All red flags for a financial position.
The simple lesson is that every organization from Fortune 500 companies to faith-based organizations must invest in a quality employee background check program.
Have you reviewed your employment background checks policy recently? Well, it might be a good time. And if you don’t have a background screening policy, it is past time to implement one. Why? Because criminal background checks are a hot button issue with the EEOC.
The EEOC met back in July 2011 in Washington DC and if I were to sum up the meeting in one sentence it would be that the proliferation of criminal background screening is to blame for high offender recidivism rates. We could open this up for debate but it does not matter. This is the position and the direction the EEOC has been moving in for years.
Did you see how this impacted Pepsi recently? An EEOC investigation determined that Pepsi’s use of arrest records, even if it was not job related, was discriminatory and adversely impacted more than 300 minority applicants. Oh, I forgot to mention, Pepsi paid $3.1 million to settle.
The EEOC has been clear that employers should use a 3 step approach to using criminal records:
- What is the nature of the crime?
- How long ago was the crime committed?
- How does the criminal record impact the employment position?
So I think we can clearly see that the EEOC would discourage the use of arrest records. Primarily because research has shown that minorities are arrested at disproportionately higher rates than non-minorities. Now, the EEOC has not disallowed the use of arrest records but would require a strong business necessity.
Also, if you have a zero tolerance criminal record policy then you might want to give it a little thought. For example, a DUI conviction 10 years ago with no other criminal records may not be a big deal for a position that is not related to driving. Now, it might be the cause of an adverse decision if they lied about it on their application or they are applying as a school bus driver.
The bottom line is your employment background checks policy should articulate that your adverse decisions are based on applicable laws and the use of a 3 step approach of defining a business necessity. Make it clear that everyone with a criminal record is not denied employment solely because of their criminal background.
Would you agree that life is about balance? It is an everyday struggle for most of us. Eat too much or not enough. Exercise too little or too much. Spend too much time running kids from one activity to the next questioning our own sanity. And why should our career be any different? Finding and maintaining balance in all areas of our life takes a lot of work.
I spent an hour this morning speaking with a journalist about the importance of balance in employment background checks. I explained that a recent judgment against Pepsi Beverage Co. in Minnesota clearly illustrates the importance of balance in background screening.
Pepsi will pay $3.1 million to settle an EEOC investigation. Why? The EEOC found that more than 300 African-American applicants had been adversely affected by Pepsi’s background screening policy.
Pepsi’s policy at the time, from 2006-2010, allegedly denied employment for arrests even if there was not a conviction if it was job related. The EEOC has long held that the use of arrest records has a disparate impact on minorities because minorities are arrested at disproportionately higher rates.
Zero tolerance policies that once dominated employment screening are now being challenged. The pendulum has swung the opposite direction. And I am not an advocate of zero tolerance policies.
Unfortunately, the pendulum did not stop in the middle, balancing safety, security and consumer protection. They can co-exist. I take consumer protection as serious as I take criminal background checks. We take great care and pride to make sure that an applicant is not adversely affected by inaccurate information. We write articles and provide training so our clients understand how to balance the legal rights of applicants with the legal responsibilities of conducting due diligence to ensure a safe work environment.
So we now occupy a world where the EEOC tells us that an arrest record should never be used. Does that mean every person arrested did nothing wrong?
Hold your horses. I get the whole innocent until proven guilty legal concept. But does excluding a long history of arrest data on someone represent balance?
This is not a theoretical discussion for me. I have had a front row seat on both sides. I have seen people arrested that should never have been arrested.
I also spent many years investigating violent crimes committed by family members and in 1994 developed the largest law enforcement-based domestic violence program in the U.S.
What was our first order of business? We trained and equipped each of our investigators to build strong cases that they could successfully prosecute without a victim testifying. Why? The majority of domestic violence cases are dismissed because the victim is too reluctant…which is code for too scared…to prosecute.
That is why when I see a long history of domestic violence arrests it does not always scream innocent to me. Yes, maybe innocent in a court of law. But not innocent. The criminal justice system has not provided a balanced approach to domestic violence victims.
However, where does that leave us as employers? We have to have balance in our employment background checks. And this is what I discussed with the journalist. We have to operate under the FCRA, EEOC, ADA, state laws….the list goes on and at the same time provide a safe work environment.
How well balanced is your employment background checks policy?
Have you ever given much thought to civil record searches? Well, last week one of our team members sent me an article about a suspended school aide who had a frightening civil record. A teacher’s aide was suspended after it was discovered that he had been ordered by a judge to pay a victim more than $1.1 million in damages 19 years ago for a sexual molestation lawsuit. The aid never admitted wrongdoing though testimony revealed he started having sex with the victim when she was 13 and the he was in his mid thirties. Further testimony revealed he had sexual contact more than 500 times.
Seriously? A civil case?
The sexual molestations were never filed as a criminal case. So naturally a team member asked, should employee background checks include a civil judgment search?
The simple answer is yes, a civil judgment search might be a good supplemental search for some positions. However, it is not that easy. Civil cases can include so many things like a divorce or sexual harassment.
This case is a little unique because the prosecutors were prevented from filing criminal charges because the victim was over 18 when she disclosed so the statute of limitations had expired.
I know, it is unbelievable that a state would not allow prosecution because the victim was now an adult. Could a child victim of sexual assault ever repress such violence? Come on, let’s be real. There are so many reasons a child might not disclose a sexual assault until they are an adult.
So with no criminal record in this case, a criminal background check will reveal nothing. Frightening? Yes, I am sure this sent shock waves through the school district and the community after it was reported.
We must understand that a civil case and a criminal case are very different. The levels of proof are not the same. For a person to be convicted of a criminal offense, the standard of proof is beyond a reasonable doubt. What does that mean? That no reasonable person should have any doubt. And it requires all 12 jurors (if trial by jury) to agree.
A civil case has a much lower level of proof. A case must only prove a preponderance of the evidence. Basically that is more likely than not to have happened and it only requires 10 out of 12 jurors to agree.
So for employment purposes, you cannot conclude that someone committed a crime based on a civil judgment. I know 1+1=2. However, our court system does not operate this way. Think O.J. Simpson criminal case (1994). He was found not guilty of the criminal charges, yet a jury awarded a civil judgment.
A civil judgment is to collect money, not to prove guilt. So a civil search is a great supplement to a criminal background check.
Would you like more information about adding civil searches to your employee background checks?
I was enjoying breakfast as a new board member with the team from Outreach, a ministry that equips and empowers teens to exit street life, when I was asked, “Did you see the article in the paper this morning?” I had to admit I had slept in and skipped the morning news and newspaper (not a bad thing). As soon as I got home, I jumped online and read the article: When You’re Criminal Past Isn’t Yours.
Well, my first reaction was absolutely no surprise. Nothing in this article shocked me. This is a battle I have been waging since I launched Safe Hiring Solutions. The employee background checks war of quality, integrity and transparency vs. cheap, substandard and low quality.
My other reaction to the article was one of embarrassment. Why? Because we do not operate this way. And I hate being painted with the same brush. We believe that consumer protection is an integral part of a quality background check.
Don’t get me wrong, we find tremendous satisfaction when we expose a serious criminal record that protects our clients and the people they serve. That is our core mission to help keep you safe.
However, I find it absolutely horrifying that so many people are mislabeled and denied employment because of cheap background checks. That is not fair. Not fair to the applicant and not fair to you as the potential employer. And guess what, you are the first place they will turn when filing some form of legal action.
Yes, low quality employee background checks dominate the industry and harm innocent people. I said it. I mean it. And I hate it. It drives me absolutely bonkers to be grouped together with other screening firms that have no standard of care.
So what did the article say? Primarily that there is a lot of junk data being wrapped up like a Christmas present and sold as a background check. And that the biggest culprits are the database compilers. Those companies that assemble criminal data and then resell it.
The article referenced a class action lawsuit against Hireright that alleges they did not respond appropriately to inaccurate information claims. Allegedly a tentative settlement of $28.4 million dollars will be divided among 700,000 people (after attorneys take $9 million).
I believe so strongly in consumer protection that our staff ALWAYS verifies any possible criminal record with the court of record. Daily we cross reference information from different sources to determine identity. And we would NEVER report a criminal record from a database.
Why? Well, first we know that the data is not reliable. Databases are tools not screening programs. We know that cases can be fluid even after a conviction. There can be reductions from felonies to misdemeanors, post conviction relief, expungements, etc.
Yes, it is becoming more and more challenging to verify information as courts redact personal identifiers such as social security numbers, dates of birth and addresses out of a fear of identity theft (oddly it is leading to a huge increase in mislabeling by lazy screening firms which is creating a new form of identity crisis).
This is precisely why there is no such thing as an instant background check or a completely automated background check. Do I need to repeat that?
When you remove “people” or “eyes” from the screening process it:
- Significantly increases the likelihood of mislabeling a criminal record; and
- Significantly increases the likelihood of missing a criminal record.
Do you like those odds? I don’t.
The solution is that organizations must become more educated on the background screening industry and process. There are high quality background screening firms that provide great protection to organizations and consumers alike. This is how it should work. It is ying and yang not ying or yang.
However, selecting the right screening firm can be like finding a needle in a haystack. You must apply due diligence to your selection process. You need to cut through the smoke screens, sexy technology and low pricing appeals and ask some questions.
The most important question you must ask is “What are we more interested in, safety and security or speed and low price?” Your answer will drive your selection.
If you are most interested in speed and low price, then your road ahead will be bumpy. And people will be hurt by mislabeling or violence.
If you answered safety and security, then you should check out these 10 things to know before hiring a background screening firm. Let a quality screening firm filter the information and protect you and your candidates. It really isn’t rocket science, just a commitment to doing background screening right.
What are your thoughts?
Joe Paterno fired. His 46 year run as the head football coach at Penn State over. Some might think this was very abrupt. A career sidelined in a blink of an eye. However this has been brewing for more than 15 years.
As I have followed the news reports, I have thought about what are the employee background check lessons can we learn from this tragedy?
First, let’s quit referring to this as a scandal. This is not a consenting adult in the oval office. The term scandal undermines the vicious, violent attacks scores of young boys allegedly endured at the hands of former Penn State Assistant Football Coach Jerry Sandusky.
Let me digress and speculate that the trail of damaged young boys surely goes further back than1994. Why? Because sexually abusing young boys is not a midlife crisis.
Sandusky started his football career at Penn State in 1964. Do you want me to believe that this insatiable desire to rape and sodomize children started in the twilight of his football coaching career?
Now let’s be clear that Sandusky has only been arrested and charged for these crimes and is innocent until proven guilty. I get that. I don’t need a flood of comments from irritated readers, hiding behind false names and fake email addresses, explaining due process and how law enforcement, the courts, society and background screening firms are corrupt and are out to get innocent people like Jerry Sandusky.
Let’s take a look at the allegations against Jerry Sandusky.
- 1977 founds Second Mile to work with troubled children from dysfunctional families. Was his mission to help or prey on vulnerable young boys?
- 1998 Sandusky admits to investigators that he showered with an 11 year old boy and that it was wrong. District Attorney Ray Gricar does not file criminal charges. Would a grown man showering with a young boy violate any policies within your organization?
- 1999 Sandusky retires from Penn State.
- 2000 a janitor in the Lasch Football Building at Penn State observes Sandusky performing oral sex on a young boy in the shower. Is it possible the janitor’s vision was distorted by inhaling too many cleaning chemicals?
- 2002 a grad assistant walks into the football locker room and observes Sandusky subjecting a young boy (10 years old) to anal intercourse in the shower. Did the grad assistant mistake this for something innocent?
- Grad assistant tells Coach Paterno who then notifies Penn State Athletic Director Tim Curley.
- Grad assistant is called to a meeting with Curley and VP of Finance and Business Gary Schultz later in the month where he is told they will look into it.
- Grad assistant hears from Curley that Sandusky’s locker room keys have been taken and that The Second Mile was notified.
- Grad assistant is never interviewed by investigators until a Grand Jury in December 2010.
- 2005 Sandusky meets another young boy through The Second Mile.
- 2008 Clinton County High School notifies authorities after victim’s mother discloses he has been sexually abused by Sandusky.
- 2008 PA Attorney General initiates an investigation.
- Sept. 2010 Sandusky retires from The Second Mile to spend more time with family.
- Nov 5, 2011 Sandusky arrested and arraigned on 40 criminal counts and released on $100,000 bond.
- Nov 7, 2011 Curley and Schultz charged with failing to report the complaints against Sandusky.
- Nov 9, 2011 Joe Paterno fired.
Ugly. Ugly. Ugly.
Well, there has to be some employee background check lessons can we learn from this?
The first lesson is access. The incidents that cost Paterno, Curly, Schultz and Spanier their jobs (and Curly and Schultz a possible criminal record) happened AFTER Sandusky retired. But they still allowed him access to the football facilities where he allegedly raped young boys.
As an employer we must do everything we can to prevent the Sanduskies of the world from gaining access to our organizations. That means we commit ourselves to quality criminal background screening and comprehensive reference checks. Yes, Sandusky did not have a criminal record but what would quality reference checks have revealed?
Second, the safety and security of children is a moral and legal obligation. How could Joe Paterno, Curly, Schultz and University President Spanier allow so many victims to be harmed by remaining silent?
The life lesson is you have a moral obligation to speak out when you witness injustice. That does not mean covering it up. That does not mean asking someone to resign from your organization under a cloud of suspicion and allowed to move on.
This means drawing a line in the sand and saying I will do whatever it takes to stop you!
Anybody feel like you are overcommitted? Ever exhale and say to yourself, where has this day gone? My dad once told me that life really moves fast the older you get. According to my kids, I have turned into my day so it is no surprise I totally understand what he was saying.
I have a great wife, 5 kids and a million activities from homework to sports, a growing business, launching a new business and volunteer board commitments. So I am constantly rushing….from meeting to meeting. From work to home. Rushing through dinner. Off to practice. Back home. Kids need to shower (the 3 boys would never shower on their own), homework, reading and then it is time to hit the sack and rest up for another busy day.
I have also had the pleasure of meeting 2 Indiana State Police Officers over the past 6 months while in a rush. Fortunately, this ended in a warning each time (and also put me further behind).
Life is busy. Work is busy. We live in a world where everything we need is available quickly. And we are impatient. Guilty. Thank you Mr. Internet.
But life requires some balance or we will burn ourselves out. Balance isn’t easy though, is it?
Just like a busy life brought me into the radar (literally) of 2 police officers, constant rushing with employee background checks will get you in trouble. Let’s look at the impact of rushing a background check.
Twice last week I had someone on our staff come by my office and tell me almost the same exact story. They finished two employee background checks and found serious felony records so they called the client to advise them.
Both times there was dead silence on the other end of the phone. This is the silence of “oh crud, we needed this person so bad we put them to work already.”
Candidate #1: 2 counts of Sexual Misconduct with a Minor.
Candidate #2: Sexual Misconduct with a Minor. He had been referred to the employer by a local police officer.
The truth is rushing an employee background check will get you in trouble. Maybe not today or tomorrow but it will come back to haunt you.
What are the problems with putting somebody to work before the background check is complete?
- The above 2 examples illustrate that the employer had sex offenders working in their organization.
- You are now terminating an employee, not rescinding an offer to a candidate for employment.
- You cannot look at somebody and determine if they are a good hire.
- You expose your organization, employees or volunteers to harm.
- You expose your organization to a negligent hiring lawsuit.
I think we would all agree that we need to put on the brakes and add some balance to our lives. The same is true of our hiring process. This is not Russian Roulette. It is not worth the risk.
Make your conditional offer and do NOT put the candidate to work until you have completed the employee background checks. Your managers will adapt and eventually appreciate this policy.
I normally don’t write 3 articles on one subject within a few months. However, I received 5 phone calls or emails yesterday on E-Verify. So let’s see if we can clear up some of the gray areas on E-Verify employee background checks. Why Does E-Verify Exist?
Very simple. U.S. law requires that companies only employ people who have a legal right to work in the U.S. which means U.S. citizens or foreign citizens with authorization. This is nothing new, however, advances in software and technology were making it very difficult to review sources documents and determine authenticity and work eligibility.
E-Verify is a Specific Federal Program.
E-Verify is not a generic term but a very specific federal program that is an “electronic verification of work authorization program of Illegal Immigration Reform and Immigration Responsibility Act of 1996".
We have fielded many, many questions from Indiana schools related to E-Verify compliance. Several schools provided a form that new employees must sign. Now, I am not an attorney, but the Indiana statute (IC 22-5-1.7-3) clearly defines this federal program as an “electronic verification” so I cannot see any scenario where you can comply with the law by having your new employees sign a document. This pinky-promise approach (yes, I have young girls) is specifically what E-Verify solves.
Are Indiana Public Schools Required to Use E-Verify?
Yes. Indiana public schools are defined as a political subdivision (IC 36-1-2-13).
Can I use E-Verify on Interns, Volunteers, Students or Contractors?
E-Verify can only be used for an employee working for pay in the U.S. If you have paid internships then you would need to check with your legal counsel to determine if they qualify as a paid employee. The new Indiana law requires contractors to use E-Verify and:
- Sign a sworn affidavit confirming they have enrolled in E-Verify;
- Provide documentation to state agency or political subdivision that they have enrolled and are participating in E-Verify; and
- Sign an affidavit that they do not knowingly employ an unauthorized alien.
How is E-Verify Different from a Criminal Background Check?
The main difference between your pre-employment background checks and E-Verify is that E-Verify is a post-hire check. Process should work like this:
- Conditional offer of employment
- Employee background check
- Hire new employee
- Form I9 & E-Verify
Does E-Verify Replace Form I9?
No. E-Verify does not replace but is a companion to Form I-9. You are still required to complete Form I9 and store in paper, electronic or microfilm format.
How Do I Enroll?
Safe Hiring Solutions has created an integration with E-Verify to make the process simple, quick and convenient. We will handle the registration process and once we receive your unique Client ID Code, we upload that to your account.
Here is a link to more information: http://www.safehiringsolutions.com/e-verify
Do you have any questions about E-Verify? Need assistance with launching your E-Verify employee background checks program? If so, contact Dixie Doub Dixie.Doub@safehiringsolutions.com or DJ Weidner DJ.Weidner@safehiringsolutions.com or 888-215-8296.
Well, I did something this week I don’t normally do. I ran 20 miles. I wish, it has been a bad week on the running trails and only slipped on my Vibrams twice. I setup an exhibit booth at the Indiana SHRM conference. I know, that is so cool.
All kidding aside, I am always reluctant to participate as an exhibitor at conferences. Exhibit halls represent traditional marketing, or interrupted marketing, on steroids.
The exhibit hall was filled with hundreds of hungry marketers and each break would bring thousands of conference participants into the hall to navigate the sea of booths and seasoned marketers.
You can see the trepidation in the eyes and body language of the participants as they work their way through the aisles. Believe me, I felt the same trepidation and I was an exhibitor. I was puzzled by the booth diagonally from us with men in tuxedos and bow ties taking your photo under their marketing banner? Who cares? Or the booth with freaky hats and Elvis sideburns. I know some of you still hold on to the hope that Elvis lives. Maybe he is a VP of marketing for a moving company. Or the rubber duckies (I have to admit my two partners were eyeing them).
I get the drawing for a free iPad. That is worth a few seconds at a booth. Although, it still does not tell me you are good at what you do, but I would love an iPad (hint Honey).
The whole process is akin to running the gauntlet. Trying to get through the exhibit hall unscathed while at the same time loading up on meaningless trinkets.
This is so not our style or culture. My mother taught me it is not right to interrupt and certainly not right to mislead. So I struggle with traditional marketing.
So you are wondering why I decided to participate? One reason is we have a chance to chat with a large number of our clients. Always worth the money.
And I always hope that I will get an opportunity to have a meaningful conversation with a potential client who is interested in employee background checks.
I am a teacher. I always have been. I have traveled all over the world speaking at conferences because I know that information is power. That is why I invest so heavily in speaking at conferences, blogging and hosting webinars.
So if you got caught up running the gauntlet and skipped past our booth, here is what I would have told you about employee background checks:
- There is no standard of care. The background screening industry is highly unregulated and offers very low quality products and services. Here is an example: A background screening exhibitor at the conference this week had recently sent marketing propaganda to a group of our clients offering them $5 volunteer background checks. I explained to our partner how this cheap search would contain less than 25% of criminal records. Yes, the price looks awesome but the background check is toilet paper.
- Industry standard is a 7 year search. Yes, that means if your applicant has a criminal record 10 years ago, you don’t see it. The federal Fair Credit Reporting Act does not restrict criminal convictions to 7 years so why do screening firms? Could be state law but that is only a handful of states.
- Criminal Databases are NOT complete. There does not exist a single criminal database (FBI, state, proprietary) that is comprehensive enough to use as a stand-alone employee background screening program.
- Alias, AKA’s & Other Names Not Searched. If they are, you are charged double or triple for the background check. Read the fine print. Does it make sense to search a name that a person has recently changed and not search former married, maiden or other names? Not if you are focused on safety.
Now, don’t get me wrong. We met some great people at the conference and had some meaningful conversations. These are people who sought us out because we don’t apply kidnapping techniques to our marketing.
Honestly, we are very selective in our clients. We want the best-of-the-best organizations at the top of their industries. Who are committed to the safety and security of their organizations. Who truly care about their people and the people they serve.
Therefore we know not every conference participant that walks by fits into that category. We are unique in the background screening industry and so are our 1800+ clients.
If you are looking for cheap employee background checks so you can say you have done something, we are not the right fit.
If you are an organization that strives to be the best you can be, then we want to talk to you. Contact us. We will make each other better.
Here we go again. Another person of trust using his power and authority to abuse children and satisfy his selfish and perverted desires. Think about the importance of current employee background checks as we look at this current incident.
So here is the cliff notes version of what happened. A principal of a private school in Northern California is accused of touching young girls inappropriately.
So by all means let me be politically correct here and use the word accused. Accused more times than we can count. But accused it is.
Principal Robert Adams, or “Mr. Bob”, is accused of doing the following over the past 15 years:
- Touching female children under their shirts and pants
- Secluding female students under a computer desk
- Lying down on a mat in his office with female students
The story popped up on my screen yesterday and I could have finished writing the story without knowing a single detail. It is the same story, different offender and victims.
I thought about my daughters and my first instinct was, well, let’s say very fatherly. Why? Because I know what damage predators like this inflict on young victims.
His perversions rob them of their childhood and innocence. It will likely follow them into adulthood and rob them of a sense of safety and security throughout their life. How do you trust again when you have been hurt physically, emotionally and psychologically? By someone who is entrusted with your care.
What blew my mind was the administrative assistant who had made 5 phone calls to the state before they took her complaints seriously? Say what? Is it that hard to believe that a school principal, police officer, or pastor could abuse a child? Unfortunately not in our society.
What makes me sick to my stomach is wondering how many of the young girls were victimized because the first 4 calls fell on deaf ears. I can only imagine the phone calls by the assistant were not vague since she was able to produce a notebook with everything she had witnessed.
So what does this have to do with current employee background checks? A lot. This principal abused for more than 15 years. Right in the school under the noses of teachers and other students.
Keeping our children safe requires:
- Dogged Determination. Sex offenders are not passive. They are aggressive, extreme risk takers, and have a tunnel focus on satisfying their sick fantasies.
- An Ongoing Process. A lot can change after a person is hired. Background Screening is an on-going process.
- More Than a Criminal Background Check. More than 80% of sexual assaults go unreported. So 80% of our sex offenders do not have a criminal record.
- Prioritizing Safety & Security of Children. Shopping for the cheapest background checks means safety is secondary.
It feels like I keep talking about the safety and security of children. I don’t want to sound like a broken record. However, I will not stop preaching until our children live in a society where these stories do not exist.
View our recorded webinar series on sex offenders to learn more about the enemy we are fighting. Detective James McLaughlin, MS, has spent more than 25 years researching, interviewing, tracking and prosecuting sex offenders and shares some valuable insight in these webinars.
Are you numb to these stories? Or do they still make you sick to your stomach?
Let me start by saying that I am cool with second chances. I need them daily just ask my spouse or kids. Been there?
Well the State of Indiana has taken it a step further. Effective July 1, 2011 they will allow ex-convicts with “non-violent” criminal records to wipe their slate clean.
Say what!! You got it. House Enrolled Bill 1211 stipulates a person may petition the court to “restrict disclosure” of arrest records if:
- Person not prosecuted and charges dismissed;
- Acquitted of all charges;
- Convicted of the crime and then it is vacated.
- It is a misdemeanor or Class D felony conviction that did not involve injury to another person AND it has been 8 years since sentence was served.
Your employee background checks will be impacted by this new law. No way around it.
Keep in mind this is not a fad in Indiana. Similar legislation has passed in other states and will in other states in the near future.
So what does “did not involve injury to another person” mean? Good question. It is not clear but I assume the following qualify for a clean slate:
- Stalking (are they including psychological injury?)
- Selling drugs
- Child support delinquency
Ok, you get the idea. I don’t have enough space to list all of the crimes that are eligible.
The only crime that is mentioned specifically as not being eligible is a convicted sex offender. What about the Bible student from Hamilton County, Indiana that was convicted of having sex with a juvenile on a high school campus? He was not required to register as a sex offender and his conviction was reduced to a misdemeanor. Eligible?
This law, just like an expungement or sealed record, makes it tricky for an applicant answering questions on an application such as: “have you ever been convicted of a crime.”
According to the new law, if you have successfully obtained a clean slate then you would answer no.
Common sense says, come on, we all know the answer is yes the applicant was convicted but the state wiped it clean. But how often do we see common sense in our legislation?
The truth of the matter is a clear background screening report does not always mean a clean background.
Let me state again for the record that I am all for second chances. We all make mistakes.
I am just not a fan of government telling us what we can and cannot see. I still believe you make the best decisions when you have all the information in your hands.
Anyway, let me jump down from the soap box. The law has passed, whether we like it or not.
We respect the law, even if we disagree. But also understand that the quality of your employee background checks and the safety and security of your organization is our highest priority.
Do you agree with the new law? Do you feel like the state does not trust you to apply common sense your hiring program? Or did the state make the right move? Come on, weigh in and let us know what you think.
Have you ever composed an email or blog post and clicked send or submit and then realized you should have added something? Yeah, been there done that. And it has just happened to me two days ago. I spent an hour last Friday composing a blog post on Social Media Background Checks and explaining how determining authenticity on the internet is extremely difficult. How common names can belong to many different people.
Then I saw a news report on Mark Zuckerberg and knew I had missed a big story on name confusion.
Guess what? Not so common names can also be shared by many different people and cause problems with employee background checks.
Just ask the real Mark Zuckerberg who was defriended by Facebook last Wednesday. Yeah, that’s right, shut down and disconnected from all of his friends.
It seems the elder Mark Zuckerberg went through a lengthy process in 2009 which included providing a copy of his driver’s license, birth certificate and his Indiana Bar Association license after he was initially denied a Facebook account.
So what does this have to do with employee background checks? Actually, this is a great lesson and example of the challenges of matching criminal records and personal identifiers.
First, social media giant Facebook cannot even distinguish between their CEO and an attorney from Indianapolis even with a copy of his driver’s license, birth certificate and Indiana Bar Association license.
So how are you going to determine the identity of your applicant’s while navigating social media sites? Very difficult. And most of your applicants will have more common names than Zuckerberg.
Secondly, there is a much larger lesson that applies to employee background checks. The courts are redacting personal identifiers from public view which means it is becoming more challenging to verify criminal records.
On a daily basis, we send researchers back into courts across the U.S. to find a driver’s license number, address, SSN or partial SSN or any piece of information we can use to link the applicant to the record.
The bottom line is you must have a trusted background screening partner who can navigate the criminal record systems and ensure your adverse hiring decisions are based on solid data.
Are you confident that your current partner is providing this level of authentication? If not, contact us today for a FREE evaluation of your background screening program.
Have you ever received a criminal background check report with a record that belongs to someone else?
Let me say that if you are reading this article it is pretty safe to say that you have already answered the question. Yes, we absolutely should be conducting current employee background checks if we want to protect our organization and our assets. First, employee background checks reduce the risk of a negligent hiring lawsuit. Negligent retention is based on the expectation that an employer will closely monitor or control the actions of an employee. Pre-employment screening reduces the risk of negligent hiring but an organization must develop a policy of current employee background checks to reduce the risk of a negligent retention lawsuit.
The courts have generally sided with employers who conduct current employee background checks when the employer articulates the “business necessity” for the new policy. What does that mean? If my organization serves vulnerable populations such as children, the elderly or the disabled then our business necessity is the safety and security of the vulnerable population we serve.
Common sense tells us that a lot can change after we hire somebody. Sure, you may have a policy that requires employees to report any arrests or criminal actions but would an employee voluntarily disclose an arrest if it ultimately will impact their job? It is more likely that a current employee will weigh their options and decide if reporting is better for them and unless you are conducting on-going employee background checks or they fear the story will be reported in the local news or newspaper then there is a high probability it will not get reported.
Numerous clients have contacted us recently with reasonable suspicion of a current employee and an arrest or conviction. In each of the cases the existing employee’s background check did confirm the arrest.
A comprehensive background screening program should be viewed as an ongoing process. We have a moral and legal duty to provide a safe work environment.
What is keeping you from implementing current employee background checks?